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Allahabad High Court · body

2022 DIGILAW 665 (ALL)

Ashok Kumar v. State of U. P.

2022-04-29

RAJESH SINGH CHAUHAN

body2022
JUDGMENT : 1. Heard Sri Ashish Kumar Rastogi, learned counsel for the applicant and Sri Rao Narendra Singh, learned AGA for the State. 2. The present applicant is in jail Since 18.6.2021 in Case Crime No. 314 of 2018 u/s 302, 307, 323 IPC, P.S. Gosaiganj, District Lucknow. He has further submitted that the present applicant has been falsely implicated in this case as he has not committed any offence as alleged in the prosecution story. 3. Attention has been drawn towards the impugned F.I.R. which is against the four unknown persons who were beating up the husband of the informant mercilessly through sharp edged weapon and batons on 29.5.2018. As per the informant she has seen those persons through the light of torch as the incident is a night occurrence of 9.30 P.M. 4. The police recorded the statement of informant/wife of the deceased on 31.5.2018. Further, the police recorded the statement of eye witness Guddu s/o Guru Prasad u/s 161 Cr.P.C. on 12.1.2019. When the local police could not investigate the matter as no reliable evidences could be collected, matter was transferred to crime branch for further investigation. The crime branch again recorded the statement of eye witness Guddu on 22.5.2020 where he repeated his earlier version recorded under section 161 Cr.P.C. The crime branch conducted the Polygraph test of Guddu s/o Guru Prasad on 15.3.2021. During polygraph test the leading question has been asked from Guddu as to whether the present applicant has committed crime in question, he replied in affirmative. As per learned counsel for the applicant the leading question could have not been asked during investigation. However, on the basis of aforesaid statement of eye witness Guddu the police arrested the applicant and send him jail on 18.6.2021 without intimating any reason to the applicant or his family members regarding the offence he has committed for that he is being arrested. Thereafter, the police filed charge-sheet on 18.7.2021 implicating the present applicant on the basis of polygraph test. 5. Learned counsel for the applicant has drawn attention of this Court towards para 15 of the bail application wherein it has been categorically indicated that the present applicant is son-in-law of the informant. Therefore, it is beyond any comprehension that if the informant was able to recognize the assailants on the date of incident she could not recognize her close relative. Therefore, it is beyond any comprehension that if the informant was able to recognize the assailants on the date of incident she could not recognize her close relative. To be more precise, as per learned counsel for the applicant had the offence in question been committed by the present applicant the informant would have recognized him being a close relative but since nothing has been alleged against the present applicant by the informant or other witnesses from 29.5.2018, the date of incident till 5.3.2021 when the polygraph test of Guddu s/o Guru Prasad was conducted, therefore, on the basis of polygraph test the present applicant may not be implicated. 6. Learned counsel for the applicant has drawn attention of this Court towards the dictum of Apex Court in re: Selvi and others vs. State of Karnataka (2010) 7 Supreme Court Cases 263 referring para 240, 242 and 264 which reads as under : "240. We must also contemplate situations where a threat given by the investigators to conduct any of the impugned tests could prompt a person to make incriminatory statements or to undergo some mental trauma. Especially in cases of individuals from weaker sections of society who are unaware of their fundamental rights and unable to afford legal advice, the moth apprehension of undergoing scientific tests that supposedly reveal the truth the act is threatening to administer the impugned tests could also elicit testimony. It is also quite conceivable that an individual may give his/her consent to undergo the said tests on account of threats, false promises or deception by her investigators. For example, a person may be convinced to give his/her consent after being promised that this would lead to an early release from custody or dropping of charges. However, after the administration of the tests the investigators may renege on such promises. In such a case the relevant inquiry is not confined to the apparent voluntariness of the act of undergoing the tests, but also includes an examination of the totality of circumstances. 242. We can also contemplate a possibility that even when an individual freely consents to undergo the tests in question, the resulting testimony cannot be readily characterised as voluntary in nature. This is attributable to the differences between the manner in which the impugned tests are conducted and an ordinary interrogation. 242. We can also contemplate a possibility that even when an individual freely consents to undergo the tests in question, the resulting testimony cannot be readily characterised as voluntary in nature. This is attributable to the differences between the manner in which the impugned tests are conducted and an ordinary interrogation. In an ordinary interrogation, the investigator asks questions one by one and the subject has the choice of remaining silent or answering each of these questions. This choice is repeatedly exercised after each question is asked and the subject decides the nature and content of each testimonial response. On account of the continuous exercise of such a choice, the subject's verbal responses can be described as voluntary in nature. However, in the context of the impugned techniques the test subject does not exercise such a choice in a continuous control over the subsequent responses given during the test in case of the narcoanalysis technique, the subject speaks in a drug-induced state and is clearly not aware of his/her own responses at the time. In the context of polygraph examination and the BEAP tests, the subject cannot anticipate the contents of the "relevant questions" that will be asked or the "probes" that will be shown. Furthermore, the results are derived from the measurement of physiological responses and hence the subject cannot exercise an effective choice between remaining silent and imparting personal knowledge. In light of these facts, it was contended that a presumption cannot be made about the voluntariness of the test results even if the subject had given prior consent. 264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872." Emphasis Supplied 7. In the aforesaid judgment the Hon'ble Apex Court has held that no individual should be forcibly subjected to any of the technique in question whether in the context of investigation in criminal case or otherwise and if such technique is adopted, the outcome thereof would have no evidentiary value. 8. Learned counsel for the applicant has submitted that during the aforesaid polygraph test the investigating officer has asked pin pointed question that 'as to whether the present applicant has committed this offence', this witness has given reply in affirmative. As per Sri Rastogi such type of questions are known as 'leading questions' and those questions may not be asked during investigation. Even such leading question may not be asked during examination-in-chief or re-examination during trial except with the permission of the Court, however, during cross-examination such type of questions may be asked. 9. He has further submitted that except the aforesaid statement of eye-witness Guddu during polygraph test no other evidence or material is available with the prosecution to suggest that the present applicant has committed offence in question. Since the charge-sheet has been filed, therefore, there is no apprehension of absconding or tampering of evidence/witness by the applicant. 10. The learned counsel for the applicant has given an undertaking on behalf of applicant that the applicant shall not misuse the liberty of bail and shall cooperate with the trial proceedings and shall abide by all terms and conditions of bail, if granted. 11. Sri Rao Narendra Singh, learned AGA has, however, opposed the prayer of bail but could not dispute the aforesaid submissions so raised by the learned counsel for the applicant. He could also not dispute the proposition of law in re: Selvi (supra). 12. Heard learned counsel for the parties and perused the material available on record and also perused the dictum of Hon'ble Apex Court in re: Selvi (supra). 13. He could also not dispute the proposition of law in re: Selvi (supra). 12. Heard learned counsel for the parties and perused the material available on record and also perused the dictum of Hon'ble Apex Court in re: Selvi (supra). 13. Without entering into the merits of the issue and considering the contents of F.I.R., statement of informant, of eye witness and polygraph test dated 5.3.2021 (Annexure no. 8), I find that this is a fit case of bail. 14. The perusal of polygraph test dated 5.3.2021 ( Annexure no. 8) reveals that the investigating officer has asked a pin-point question vide question no. 1 from eye witness Guddu s/o late Guru Prasad that " as to whether Sarhu Ram Prakash and Damad Ashok had assaulted on the victim". The said eye-witness replied "Yes". 15. To me instead of asking leading question from the eyewitness Guddu s/o late Guru Prasad the prosecution should have asked as to who were those persons who have attacked on him and victim. However, even such question could not have been asked while conducting the polygraph test inasmuch as such test has been disapproved by the Hon'ble Apex Court in re: Selvi and others (supra). 16. I am constrained to observe here that when such eye witness Guddu s/o late Guru Prasad and the informant who is wife of deceased had not alleged anything against the present applicant while recording their statement u/s 161 Cr.P.C. on 12.1.2019 and 31.5.2018 respectively whereas the present applicant was close relative of the informant then the statement of eye witness Guddu s/o late Guru Prasad taken while conducting polygraph test would have no evidentiary value in view of the dictum of Hon'ble Court in re: Selvi (supra). Therefore, when such statement of the eye witness in question has got no evidentiary value in the eyes of law, the implication of the present applicant in such case would not be proper subject to other circumstantial evidence and corroborative material which would be seen during trial. In other words, any observation of this Court in this order would not effect the trial proceedings in any manner whatsoever and the trial would be conducted and concluded strictly in accordance with law. In other words, any observation of this Court in this order would not effect the trial proceedings in any manner whatsoever and the trial would be conducted and concluded strictly in accordance with law. Whether the present applicant is guilty or not in the charges framed against him, will be decided by the trial court on its own merit after analyzing the evidences that surfaces on record during the trial. 17. Therefore, In view of the above the present bail application is allowed. 18. Let the applicant Ashok Kumar, involved in aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:- (i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. (v) The applicant shall not leave the country without permission of the Court concerned. 19. (v) The applicant shall not leave the country without permission of the Court concerned. 19. Before parting with it is expected that the trial shall be concluded with expedition. Further, the learned trial court may take all coercive measures as per law if either of the parties do not cooperate in the trial properly. The learned trial court shall fix short dates to ensure that trial is concluded at the earliest.